Sales of goods act and Mobile phones

nearlyrich

I have just spent a good few minutes on the phone to a mobile network customer service operative regarding a 9 month old mobile phone that needs repairing under warranty. The phone was purchased from the mobile network directly (i.e. not from a retail partner) as an upgrade last May. The original phone they sent out had exactly the same fault that this one has now developed and was replaced with no problems by the network with a couple of days of receipt.

The network CS are saying that unless we pay for insurance the warranty has to be accessed through the manufacturer and they are not liable to repair or replace it. I have looked on consumer direct and it clearly states that the trader is responsible to sort out the problem not the manufacturer.

The CS supervisor is supposed to be calling me back tonight, any advice anyone? The CS guy I spoketo earlier was adamant that they can refuse to deal with it even though it's law that they should, what do I do next???

reehsetin

any more details on the type of fault and the network?

some faults may not be covered by SOGA if its been dropped etc

nearlyrich

It's not been dropped, it's an intermittant fault which causes the phone to switch off for no apparant reason.

reehsetin

not a sony ericsson is it?

depending on the manufacturer it can be either 1 or two years warranty
carphone warehouse are authorised repairers for the manufacturers and will repair under warranty, if the network are being a pain go to carphone warehouse, if youve got one near you with a repair center it can take as little as 4 hours for a repair, if they find any damage or water damage etc they'll tell you and wont fix it then but they'll at least look at it

or take it into a retail store of the network, depending on the network they may be able to send it away for repair from there

or ring back and talk to a different CS it IS their responsibility ultimately, Sale of goods act s.14 states goods should be of satisfactory quality, a phone turning itself off when it feels like isnt and sale of goods act deals with the retailer not the manufacturer

nearlyrich

Right first time it is an SE, and Orange, they are fobbing us off to SE who offer a service which can take upto 35 days and it's return at your own expense.

It just infuriates me when companies indoctrinate their staff with their version of what the law is and they just repeat the misinformation parrot fashion.

There is a CPW repair centre not too far away so if we can't get Orange to take their responsibilities seriously we can take it there tomrrow.

I am going to call consumer direct in the morning and ask them what we should do next.

Thanks for your input, much appreciated.

reehsetin

se is 2 year warranty
orange retail should be able to send it away for repair but we'd need some kind of proof of purchase to send with it (it goes to a 3rd party) maybe a delivery note or something but CPW is usually quickest

mcdelarich

I don't work for orange, but i have had to look into this to deal with a rather abusive, and somewhat stupid customer previously. Here goes:
The sale of goods act states that if the device goes faulty and is reported to the retailer within 6 months of purchase, it is reasonable to assume that the device was faulty at point of purchase and is the responsability of the retailer to repair, or where a repair would cuse significant inconvenience (Business contracts only) a replacement. If it has been longer than the 6 month period then it is the responsability of the manufacturer to fufill the warranty, which with Sony Ericsson is 2 years. As a practise of good customer service the retailer should offer to arrange with the manufacturer to repair the device. If you wish, you can take it to a Carphone Warehouse for a free repair under warranty (i.e not accidental/liquid damage), provided you have a proof of purchase, other they will charge a standard non-warranty charge of £45. The average store turnaround time is 2 weeks, however if you take it to an express repair centre, the average turnaround time is 1-2 days. They can offer a cheap looking standby phone for a deposit of £50, but best to try and dig out an old phne to be honest. You can see if you have an express repair centre near you by checking on the Carphone website, hitting "Find a Store" and ticking the express repair centre box.

Hope this helps clear things up

Quentin

Your advice about the sale of goods act is incorrect.

It is always the seller (not the manufacturer) who is responsible if goods do not conform to contract.

Regarding the 6 months from purchase that you refer to, the correct situation is that within the first 6 months it is up to the seller to show the goods never had an inherent fault, and after 6 months it is up to the customer to show that the problem is due to an inherent fault.

theresfogonthetyne

Quentin wrote: »

Your advice about the sale of goods act is incorrect.

It is always the seller (not the manufacturer) who is responsible if goods do not conform to contract.

Regarding the 6 months from purchase that you refer to, the correct situation is that within the first 6 months it is up to the seller to show the goods never had an inherent fault, and after 6 months it is up to the customer to show that the problem is due to an inherent fault.

** This is my interpretation of the Act, seek professional advice also. This is to be used to maybe give you some pointers only. Its not legal advice **

Inside 6 months it is the seller who must deal with the problem, but don't assume that because they have to deal with it that they have to replace it, because you are not always entitled to a replacement even in 6 months. You are only entitled to a refund or replacement within a reasonable time, this can be very short space of time. Especially something you buy and that can easily be inspected.

I have worked retail both online (my own business) and for a company. There are many factors that contribute to repair, replacement or refund. Refund is if a fault develops within a reasonable time (14 days say). The purchaser chooses their remedy here and can request a full refund its not the retailers choice, its the purchaser

• Within 6 Months

If its outside this reasonable time but within 6 months the law changes slightly and the rights of the purchaser dilute a little bit. The retailer has to take responsibility and either still replace or repair whichever is reasonable for the retailer, but with little inconvenience to the purchaser. Its not the purchaser who chooses, the retailer has the choice to provide one over the other and will be within rights to make a cost calculation of what is cheaper - repair or replacement, BUT they have to do it within good time and without too much inconvenience to the purchaser. So giving the purchaser a loan phone for example would be reasonable. BUT the retailer only has to do this if they can't prove it wasn't an inherent fault, you could still be referred to the manufacturer if they prove it was ok when you purchased it. For example the camera stops working 3 months down the line. As a seller they could prove it was ok when supplied to you if you have photos taken with the phone in the media album.

If the fault is inherent and the retailer cannot prove it wasn't faulty when purchased then the customer is entitled to a refund (maybe only partial too if you have had some us from the phone). It is at this point that the retailer has to prove it wasn't faulty when supplied to you. You don't have to do anything at all, the onus is on the retailer. If they prove it wasn't faulty when supplied to you then they may deal with the problem, they don't have to replace or refund they can choose repair and they can also charge for any service (remember if it wasn't faulty when supplied). Don't confuse the 6 month law with being able to get a replacement or refund within 6 months. The 6 month time limit is about who (seller/purchaser) must prove the product was inherent or not.

For example if I am a trader and I sell you a phone and it develops a fault in 5 months. You come to me and say "the phone wont make calls can you deal with this"? I know immediately it's not an inherent fault because its been used, it has outgoing texts, it has calls, you have had bills for 5 months etc. Some may say that inherent can be manufacturing flaws, bad workmanship etc to allow it to go faulty and I must admit this is a grey area. But inherent means (by my understanding) a fault that was there or manufactured into the product, developing fault means one that has just come about from a working state to a non-working state.

So in this situation I (as the seller) can prove its not an inherent fault. The purchasers remedy effectively ends here, but usually you will get a repair and if lucky a replacement. Whatever the seller offers here is in full addition to your rights.

If (as seller) i cannot prove its not inherent then I must either repair, replace or refund, which ever the customer wants. So for example its not made any calls, sent texts, or taken any photos then it was obviously inherent at the time of sale. I could call the network to check for calls and see. You may only be entitled to partial refund now to, but based on not being able to use it at all you will probably get a full.

• Outside 6 Months

If you are outside 6 months then again your rights have diluted a little more at this stage. The retailer doesn't have to prove it was faulty when purchased (inherent fault) you must do this now. Which can be difficult, and maybe even costly. It maybe that the manufacturer has released info about a recall or a fault with the product in some models, BUT regardless it is the purchaser who has to prove this, the retailer doesn't have to prove anything.

If you cannot prove it was inherent then the retailer does not have to do anything. They can legally refer you to the manufacturer and most retailers do. For those who don't refer you and handle the repair for you are allowed to charge for the service if they carry out the repair themselves or they can charge delivery to the manufacturer for you. BUT be aware this is only in addition to your rights.

If its outside 6 months and the fault was not inherent at time of purchase then you have no legal rights against the retailer.

Some people confuse the "Sale of Goods", "Warranties", "6 Months Rules" etc so badly that they expect sellers to jump through hoops. I have literally drawn flow charts for customer pinpointing every step of the law and mapping to their case and when you get to the point where it shows them they have no legal rights they still complain.

REMEMBER the law is there for both buyer and seller.

gjchester

theresfogonthetyne wrote: »

If you cannot prove it was inherent then the retailer does not have to do anything. They can legally refer you to the manufacturer and most retailers do. For those who don't refer you and handle the repair for you are allowed to charge for the service if they carry out the repair themselves or they can charge delivery to the manufacturer for you. BUT be aware this is only in addition to your rights.

If its outside 6 months and the fault was not inherent at time of purchase then you have no legal rights against the retailer.

The contract is between the buyer and the seller. You are right that the buyer has no rights to demand a replacement, that choice is down to the seller. However outside 6 months and up to the end of the warranty then the buyer DOES have a legal right to have the seller make repair / replacement.

The seller may refer the buyer back to the manufacturer but the buyer does not have to accept that and can insist the seller deals with it, after all they sold the goods (I'm leaving out inherent or not faults that's not really an issue as this point as it's beyond 6 months old).

I'm not sure the seller can ask for costs to send it away, as long as the buyer delivers it to the seller, I don't think the seller can ask for additional costs to send it to the maker. Again the contract is between the buyer and seller, not the buyer and the wholesaler / manufacturer.

In addition the Seller is also a buyer and will have rights with the wholesaler / distributer that may cover the costs of returns or may not.

theresfogonthetyne

gjchester wrote: »

The contract is between the buyer and the seller. You are right that the buyer has no rights to demand a replacement, that choice is down to the seller. However outside 6 months and up to the end of the warranty then the buyer DOES have a legal right to have the seller make repair / replacement.

The seller may refer the buyer back to the manufacturer but the buyer does not have to accept that and can insist the seller deals with it, after all they sold the goods (I'm leaving out inherent or not faults that's not really an issue as this point as it's beyond 6 months old).

I'm not sure the seller can ask for costs to send it away, as long as the buyer delivers it to the seller, I don't think the seller can ask for additional costs to send it to the maker. Again the contract is between the buyer and seller, not the buyer and the wholesaler / manufacturer.

In addition the Seller is also a buyer and will have rights with the wholesaler / distributer that may cover the costs of returns or may not.

Like i said it is my interpretation of the Law. You quoted:

"However outside 6 months and up to the end of the warranty then the buyer DOES have a legal right to have the seller make repair / replacement."

This is both wrong and right in two aspects. It is the retailer who is responsible, BUT for up to 6 years under the (Limitation Act 1980) not until the end of a given warranty period, but don't cloud it with the point that a product must last 6 years, it simply means that a case can be brought within this time. Warranties are not part of the law, and neither one form part of the contract of sale with the retailer nor have to be provided by law. A manufacturer could give a 30 day warranty for example if they wish. Warranties and SOG are separate, and neither reference the other.

Further to your quote, a retailer is not obliged outside 6 months if the product fails because of "fair wear and tear" or "misuse". And the retailer is only obliged if the product had an inherent fault of which you must prove (fault at the time of sale), but is still must be durable and last a reasonable amount of time.

If its outside 6 months a retailer could request that you have independent inspection to see if the fault was inherent (burden of proof is the customers at this point) and they are within rights to do this, hence why many retailers say send it to the manufacturer as its easiest for you and them. This could cost you a considerable amount of money depending on the product if you were to pursue the sale of goods act and not just have the manufacturer do it for you.

If you have a pc hard drive fail at say 16 months, outside 6 month, out of warranty and your approach to the retailer is the usual response of "its out of warranty" or "you must pay for repair" the retailer is borderline breaking the law, but then again they may not be and investigation needs to be taken.

If they say that the product wasn't inherently faulty (which is safe to assume it wasnt after 16 months use), then you would have a case under durability for example.

Consider these two scenarios, and if it was my business (but im not in retail anymore) this is how I would operate/act.

1) I sell a laptop to a customer, he comes back within 6 months and states that the hard drive has failed. He has had 6 months use, and it has been working so it is safe to assume the fault is not inherent (although may not be 100% correct), but certainly its not durable. A hard drive has a life expectancy of about 10,000 + hours. So even if he had left it on solidly for 6 months it would have still only clocked up 4300 hours or so, so the product has failed and any reasonable person would make the assumption that the product although fit for purpose is not durable.

Outcome/Action: Repair laptop, and loan a laptop to the customer or make calculations for partial refund, or replace with a like for like 6 month old device or brand new laptop (yes I can replace with like for like or better 6 month old laptop - the law says i can).

2) I sell a laptop to a customer, he comes back 24 months later with a failed hard disk, requesting a replacement or refund. We can at this point make an assumption the fault wasn't inherent, as its been in use for 24 months, its been semi durable but will need investigation to see if the fault actually is "wear and tear" or "misuse" or "inherent fault". I would kindly tell the customer he is not entitled to a refund because he has had use from the product and that if we are obligated after investigation we shall cover all the costs to getting a repair done.

I would offer to send the product to an independent repair company for inspection, I would offer a loan if the user needed it and the repair was going to cause considerable inconvenience. I could legally request the customer do this, as it is them that must prove its not "wear and tear" and that its an inherent fault, but I wont on this occasion.

I would make the customer aware that we are happy to take responsibility/costs for all of this unless the following:

• Misuse
• Fair Wear and Tear
• Damaged

If after getting the laptop back and the report from the engineer shows that the drive failed due to "fair wear and tear" and that the computers onboad memory clock registered 15,000 hours use (i.e. left on nearly all the time) then I would charge the customer, for transport of the laptop for repair, the repair and parts, and for loan of a laptop and appropriate administration costs for my members of staff and company to do this on behalf of the customer.

I would be happy to take all responsibility that I am legally required to under the laws, but I would not take responsibility for something the customer is *legally* responsible for, and "fair wear and tear" is one element that customers are responsible for, along with misuse, and damage.

The problem is with a products durability, there is no manual that people can refer to or how long stuff should last and under what conditions. Should a TV last 5 years? Yes and No! It depends on a number of factors. Use-age (how many hours has it been on for), location of use, the conditions and elements that it operates in. So for example a TV that is laden with dust in all its vents, and on its components fails after say 2 years. The manual states that it should be kept clean, free from dust and in a well ventilated room and it hasn't been is the owners fault, not the retailer. Is the retailer liable? In my eyes certainly not.

I have run my own business now for many years (not retail anymore thank god), but I used to work both online retail and offline face to face. I specifically remember dealing with a customer who had a phone that had been dropped many times (dents) and had visible water damage (indicator on the battery). He insisted on us sending it for repair and he said it was his rights, and that dropping the phone wasn't what caused the fault and that he never dropped his phone in water (he suddenly turned into an electrical engineer). He got a loan phone, and we sent the phone to LGE. The repair centre emailed and said the phone was badly damaged, from physical impact and water and that the customer had 14 days to call with a credit card to pay to have it re-delivered to his house, unless they would dispose of the phone.

I think its important to realise that your rights only reach a certain point. You get all these situations of "customer" and "retailer" stand offs, and neither backing down. I think as long as you (the customer) are willing to accept that it may not end up being the retailer responsibility, then you should push all the way to court on it, after all the courts will decide the outcome for you! Just be willing to pay if your product just wore out as it would be expected to, or that you may well have damaged it! Can we all say we have never dropped our mobile phones, or sat with our laptops on our knees, causing it to overheat, or left our IPod out in the blazing heat sat on the beach? All stuff you shouldn't do, but only very few who could say they never have.